Police v WILLIAMS - [2007] SASC 227

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v WILLIAMS
[2007] SASC 227
Judgment of The Honourable Justice David
27 June 2007
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE
Appeal against dismissal of Complaint - assault occasioning actual bodily harm - conflicting versions of events - whether magistrate erred in application of self-defence - use that can be made of unsworn statements - role of appellate court - appeal allowed.
Criminal Law Consolidation Act 1935 (SA) s 15, s 40, referred to.
Mule v R (2006) 221 ALR 85; R v H, ML [2006] SASC 240; R v Morgan [2005] SASC 391, discussed.

POLICE v WILLIAMS
[2007] SASC 227
Magistrates Appeal

DAVID J. This is an appeal against the dismissal of a Complaint. The respondent was charged with assault occasioning actual bodily harm, contrary to s 40 of the Criminal Law Consolidation Act 1935 (SA). He pleaded not guilty in the Adelaide Magistrates Court and, after a trial, the magistrate held that the offence had not been proved beyond reasonable doubt because there were two conflicting versions of events, one of which was consistent with innocence and which could not be excluded as a possibility.
Facts
The alleged assault occurred on 10 September 2004 at South Plympton. The prosecution case was that the respondent, along with another person (whom I shall refer to as “W”), assaulted the alleged victim (whom I will refer to as “V”). As a result of the assault, V suffered facial injuries which required medical attention at the Flinders Medical Centre.
V gave evidence that on the afternoon that the incident occurred he was walking down Vincent Street to go into John Street at South Plympton when he noticed three cars following him. Two males (namely the respondent and W) got out of one of the cars and approached him. He gave evidence that he knew both of these men. The respondent accused V of “keying” his car, which I understand to mean scratching and damaging his vehicle with a key. V gave evidence that he denied that assertion, as a result of which the respondent grabbed him and headbutted him, splitting his head open. V gave evidence that he was then knocked to the ground and struck with two punches by W. V gave further evidence that the respondent held him on the ground for about two minutes and kicked him in the mouth, chipping his tooth. V saw the people surrounding him (of whom there may have been more than two by this time) get into their cars and leave. He was then picked up by an ambulance and treated, and eventually went to hospital. He received a number of stitches to his head and his lip.
An independent witness (whom I shall refer to as “B”) was also called. B gave evidence that he did not see the start of the alleged assault, but saw a group of people push a person to the ground and one person on top of him hitting him a few times. He said they all then jumped into a car and left. B could not identify anybody specifically, but the thrust of his evidence was that there were a number of people involved in assaulting one person.
The prosecution also presented evidence of a statement about the incident that the respondent gave to the police on 21 April 2005. When originally spoken to on that day, before the formal record of interview was conducted, the respondent denied knowing anything about the incident. However in the formal record of interview he admitted that he had lied, and admitted his involvement in the matter. In his record of interview he told the police that he had a strong suspicion that V had “keyed my car”. He said he finally saw V and confronted him, and said that “he [V] was drunk at the time, started swinging at me going nuts and we fought and basically I won like”. The respondent also said in his record of interview that another person, Jack, was around the place, but there was no physical involvement between he and V. Although confusing, the respondent’s version seemed to be that although he confronted V and was with at least one other person, that V pushed him first and a fight then took place between the two of them. The respondent denied that W kicked V in the stomach, and he denied that he [the respondent] started the fight. He also said to the police that his intention when confronting V about keying his car was merely to get some money out of him, or to ascertain whether he was responsible. The respondent’s statement to the police seemed to be that the first physical action was by V in pushing him, and then a fight started.
At trial, the respondent exercised his right to silence and the defence called no evidence. Quite correctly the magistrate forwarded no prejudice to the respondent for exercising his right to do so.
The Magistrate’s Reasons
The magistrate held that there were two conflicting versions, namely that given on oath by V as opposed to the version given by the respondent in his statement to the police. He correctly held that if V’s version was proved beyond reasonable doubt, then clearly the charge was made out. However, he said that if there was a hypothesis that was at least consistent with the respondent’s version of events in his record of interview, then he should be acquitted. The magistrate said:
But the issue is whether it is conclusive or whether there is a hypothesis that it is at least consistent with the defendant’s version of events which he gave in a record of interview, held a good nine months after the event for some reason, on 21 April 2005 at 1.25 pm.
I do not intend to recite that in any great detail, I have read through it carefully over the luncheon adjournment and that sets out a scenario from the defendant’s point of view that is consistent with a version of events which shows that there was this foolish initial confrontation on the part of the defendant with the victim, a denial by the victim of having keyed the car and then the beginning of a fight started, on the defendant’s version, by the victim pushing him. Then they immediately went into fight mode, beginning with headlocks and falling to the ground with the defendant on top at times. Indeed, in the record of interview the defendant concedes that there could have been a clashing of heads which would account for the sutured injury to the forehead. He concedes that he punched the victim during the course of the fight. He has no recollection of [W] being involved. In fact, he says that [W] was involved only in pulling his car up so as to shepherd the victim in so that he could not get away.
The prosecutor says that it is significant that although asserting in the record of interview that he, the defendant, had sustained injuries he did not have to attend for any medical treatment. He simply went home and swabbed it with alcohol.
There can be no doubt that the victim sustained significant injuries consistent with the ambulance people obviously deciding that he needed immediate hospitalisation and treatment.
But as Mr Richter submits, if there is a reasonable possibility on the evidence that there was a fight it is not sufficient to establish proof beyond reasonable doubt that one party in the fight sustained more serious injuries than the other.
I agree with Mr Richter’s submission that the evidence of Mr [B] is not very helpful. It seems to be common ground on the evidence of the immediate protagonists, namely [V] and the defendant, that there would have been a maximum of four people involved, including the victim, whereas Mr [B] deposes to seeing as many as possibly 10 people being involved. He describes what he initially saw as a melee rather like that which occurs in a football match, but after a while he was able to ascertain that the focus was on a person who ended up on the ground underneath another person.
It is possible to conclude that of course what he saw was the very end of the altercation when all the parties had decided to go, including the defendant, but it is difficult to hold him to be a reliable witness in circumstances where he says that there are as many as 10. I am not criticising him for that. It is just that it is an unusual event for him and I think maybe with the passing of time he has come to believe that there were more people involved than there actually were. His evidence however certainly does not take the matter any further as to how the events which gave rise to the injuries which Mr [V] undoubtedly sustained, how this incident started, and that is the problem here.
It is a matter where I am left, after a consideration of the evidence, that there is a reasonable hypothesis consistent with innocence not excluded by the prosecution case – namely, that events occurred in the manner suggested by the defendant in his record of interview, and this was not a vicious unprovoked attack going the defendant’s way alone, but rather that it was a series of events which began with a verbal altercation between the parties and that a fight beginning with each placing the other in headlocks and falling to the ground, getting up again and going to ground again, and it is possible in those circumstances that the injuries sustained by the defendant were sustained in the course of the fight which happened between the protagonists.
I must remember of course that no adverse inference is to be drawn from the fact that the defendant did not give or call evidence.
I am not satisfied that the charge has been proved beyond reasonable doubt and I therefore dismiss it.
The magistrate found the respondent not guilty.
Arguments on Appeal
The appellant now argues that the magistrate erred in accepting the respondent’s version of events in his statement to the police as a possible version. The appellant also argues that the magistrate erred in totally rejecting the evidence of the independent witness B as being of any significance. Although B did not see the initial contact between the parties, nevertheless his evidence that there were a number of men involved in assaulting one person would tend to support the prosecution’s assertion at trial that the attack was not lawful, either by way of self-defence or some type of voluntary fight. There is also some concern about the finding whereby it is reduced to “two conflicting versions of events”. One version of events is of course presented by two witnesses giving evidence on oath and being cross-examined. The alternative version is an unsworn statement to the police taken some nine months after the incident. There have been a number of recent cases on the status to be given to exculpatory statements made by accused people out of court and the value to be given to them.[1] Irrespective of the status of such material, it is clear that it is not to be classified as the equivalent of sworn evidence. However, the magistrate was entitled to treat that statement as a possible version of events, and being the trier of fact in a relatively short case, was quite entitled to hold that that version was a reasonable possibility, despite the fact that it contradicts sworn evidence presented at trial.
[1] Mule v R (2006) 221 ALR 85, 91‑94; R v H, ML [2006] SASC 240, 25‑27; R v Morgan [2005] SASC 391, 49‑51.
The appellant also argues that even if that is so, nevertheless there is no finding or proper analysis as to whether the version of events accepted by the magistrate indicates that the prosecution at trial have failed to negate self-defence or some type of voluntary behaviour on the part of the respondent. It is clear that even on the respondent’s version in his statement to the police, V was hit and suffered damage. It is also clear that the respondent approached V with W and was later joined by other people. V was alone. The magistrate’s assumption that because the respondent’s statement to the police is a possible version of events it is therefore consistent with innocence is a quantum leap that could not be made. In my view there had to be a careful analysis of the facts as proved to decide whether the admitted damage caused to V by the respondent was lawful. This required an analysis of the facts with reference to s 15(1)(a) and (b) of the Criminal Law Consolidation Act which state:
15—Self defence
(1) It is a defence to a charge of an offence if—
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
The magistrate has not examined whether it is reasonably possible on the whole of the evidence that either of the alternatives were present, namely:
(a)that the respondent genuinely believed that the conduct to which the charge related was necessary and reasonable for a defensive purpose; and
(b)the respondent’s conduct was, in the circumstances as the respondent genuinely believed them to be, reasonably proportionate to the threat that the respondent genuinely believed to exist.
In my view it was necessary that this be done, rather than making the assumption that because the respondent’s statement to the police is a possible version of the facts it therefore follows that the charge has not been made out.
Conclusion
Appellate courts as a general rule are reluctant to interfere with an appeal against an acquittal. I also appreciate that it is unrealistic to expect magistrates in all cases to give heavily detailed reasons for every decision they make. However, I am of the view that in this case, fundamental propositions were not addressed. I would allow the appeal. I set aside the verdict of not guilty and remit the matter to the Magistrates Court to be heard before another magistrate.